Reversing roles, farmers sue Monsanto over GMO seeds

Genetically modified seed giant Monsanto is notorious for suing farmers [PDF] in defense of its patent claims. But now, a group of dozens of organic farmers and food activists have, with the help of the not-for-profit law center The Public Patent Foundation, sued Monsanto in a case that could forever alter the way genetically modified crops are grown in this country. But before you can understand why, it’s worth reviewing an important, but underreported aspect of the fight over GMOs.

One of the many downsides to genetically engineered food is the fact that modified genes are patented by the companies that isolate them. This is not typically part of the story that gets much attention when you read about all those great (but nonexistent) magic seeds that will grow faster, better, cheaper, etc. and seem to forever remain “just around the corner.”

As any music or movie lover knows from experience, patent and copyright law in this country is a mess. You only need to look at the music industry’s successful campaign to sue random consumers over file-sharing to know that. Fun fact: no fiction copyright granted after 1929 — whether a movie, television show, or book — will ever be allowed to expire because that was the year of Mickey Mouse’s “birth” and Disney has convinced Congress that Mickey should never fall into the public domain. That’s one screwed up way to go about protecting the interests of authors. And forget about the folks over at the U.S. Patent Office — it’s clear that they have no idea what they’re doing anymore.

In my recent Common Ground cover story on GMOs, I referred to the fact that the federal government “insists the food revolution will be genetically modified.” Well, what biotech companies want more than anything is for the food revolution to be patented. Why is that? Because, unlike pharmaceuticals, patented genes will never go “generic” after some number of years. Monsanto and its biotech buddies can keep milking that transgenetic cow for decade after decade.

GMO crops have another interesting quality — you can “use” a patented gene without even knowing it. When you download and share music and movies on peer-to-peer networks or plagiarize blog posts or books, let’s face it — you know what you’re doing. But if you’re a farmer, GMO seeds can literally blow in to your fields on the breeze or just the pollen from GMO crops can blow in (or buzz in via bees) and contaminate your organic or “conventional” fields. And if that happens, Monsanto or Syngenta or Bayer CropLife maintain the right to sue you as if you had illegally bought their seed and knowingly planted it.

In an appropriately Orwellian twist, the companies even call such accidental contamination by their products “patent infringement.” And, in the face of a government more than willing to allow companies to “defend” their “intellectual property” in this way, organic farmers and others have now stepped up and said, in short, “Hell no!”:

The case, Organic Seed Growers & Trade Association, et al. v. Monsanto, was filed in federal district court in Manhattan and assigned to Judge Naomi Buchwald. Plaintiffs in the suit represent a broad array of family farmers, small businesses and organizations from within the organic agriculture community who are increasingly threatened by genetically modified seed contamination despite using their best efforts to avoid it. The plaintiff organizations have over 270,000 members, including thousands of certified organic family farmers.

“This case asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto’s transgenic seed should land on their property,” said Dan Ravicher, PUBPAT’s Executive Director and Lecturer of Law at Benjamin N. Cardozo School of Law in New York. “It seems quite perverse that an organic farmer contaminated by transgenic seed could be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients.”

If the suit is successful, not only will it limit Monsanto’s ability to sue farmers, the company will have far greater responsibility for how and where its biotech seeds are planted. The regulatory free ride will be over. While that won’t eliminate GMO crops, it will at least give organic farmers a hope of avoiding contamination.

What I find intriguing about this suit is that it comes on the heels of a set of rulings against biotech companies and in favor of organic farmers. As I have speculated before, courts have decided that the interests of organic and other non-GMO farmers are now significant enough to require protection. While the USDA and the White House seem happy to do Monsanto’s bidding (as they did in recent decisions to allow Roundup Ready beets and alfalfa), the federal courts — and even the Supreme Court — do not seem so quick to dismiss the economic harm that might come to unfettered use of GMO seeds. This one, my friends, bears watching.